F I L E D

United States Court of Appeals

Tenth Circuit

APR 6 1999

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TIMOTHY BYRNE,

Defendant - Appellant.

No. 98-2027

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D. Ct. No. CR-97-281-BB)

Randolph J. Ortega, Ellis and Ortega, El Paso, Texas, appearing for DefendantAppellant.

David N. Williams, Assistant United States Attorney (John J. Kelly, United States

Attorney, with him on the brief), Albuquerque, New Mexico, appearing for

Plaintiff-Appellee.

Before TACHA, BALDOCK, and MURPHY, Circuit Judges.

TACHA, Circuit Judge.

Defendant-Appellant Timothy Byrne was convicted of using

telecommunications devices in interstate commerce to entice a minor to engage in
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sexual acts in violation of 18 U.S.C. § 2422(b), and traveling in interstate

commerce for the purpose of engaging in sexual acts with a minor in violation of

18 U.S.C. § 2423(b). The district court sentenced him to twenty-one months

imprisonment followed by a three-year period of supervised release. On appeal,

defendant argues that we should reverse his convictions because: (1) the district

court did not allow his counsel to fully impeach the complaining witness; (2) the

prosecution failed to produce evidence of the district court’s venue; and (3)

extraneous material was introduced into the jury room. We affirm.

During the summer of 1996, defendant met a minor through an Internet chat

room. At the time of these events, defendant resided in El Paso, Texas, and the

minor lived in Clovis, New Mexico. The complaining minor testified that over

the course of several communications between Texas and New Mexico, defendant

arranged a meeting with him in Clovis for the purpose of engaging in sexual

relations. On August 9, 1996, defendant traveled to Clovis and performed a series

of sexual acts with the boy.

On May 7, 1997, a federal grand jury returned a two-count indictment

against defendant charging him with using telecommunications devices in

interstate commerce to entice a minor to engage in sexual acts in violation of 18

U.S.C. § 2422(b), and traveling in interstate commerce for the purpose of

engaging in sexual acts with a minor in violation of 18 U.S.C. § 2423(b). During
1

 Presumably, defense counsel premised this argument on the fact that the

allegation of venue in the indictment refers only to Curry County, New Mexico,

rather than the city of Clovis. We find this argument borders on the frivolous. In

any event, we take judicial notice of the fact that the city of Clovis is located

within Curry County, New Mexico. See United States v. Burch, -- F.3d --, No.

97-1442, 1999 WL 111141, at *5-6 (10th Cir. Mar. 4, 1999) (asserting that

judicial notice may be taken for the first time on appeal and that “[w]hether an

offense occurred within particular geographic boundaries is an appropriate subject

for judicial notice”).

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Mr. Byrne’s jury trial, the prosecution called the complaining minor to testify. 

On cross-examination, defense counsel sought to question the minor regarding his

interactions with another man whom he had met over the Internet. The minor had

traveled out of town to meet this man, and authorities arrested him as a runaway. 

After his arrest, he made statements inculpating defendant. The district court did

not allow questioning regarding these events pursuant to Federal Rule of

Evidence 403, having found the testimony substantially more prejudicial than

probative.

At the conclusion of the government’s case, defendant moved for a

judgment of acquittal, arguing that the government had failed to offer evidence

establishing the district court’s venue and jurisdiction. Specifically, defendant

argued that as to both counts in the indictment, the prosecution failed to establish

that Clovis was in Curry County, New Mexico,1 and as to the enticement count,

the government failed to prove that defendant used any instrumentality of

interstate commerce within Curry County, New Mexico. The district court denied
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defendant’s motion for judgment of acquittal.

Finally, during the jury’s deliberation, a juror discovered extraneous

material included within an atlas that had been admitted into evidence. The

material consisted of several computer printouts containing profiles of minors

who wished to engage in a homosexual relationship. The juror, without reading

the material, sent it out of the jury room. Upon notice that the jury had received

this material, defendant moved for a mistrial. The trial court conducted a hearing

on the matter outside the presence of the jury. During the hearing, neither party

admitted knowing that the atlas contained extraneous material. At the conclusion

of the hearing, the district court stated that it would continue the investigation

after the jury returned from its deliberation.

The jury rendered a verdict of guilty as to both counts. After the court read

the verdict, but prior to excusing the jury, the court, as promised, questioned the

jury regarding the extraneous material. The district court also asked each juror

individually whether he or she had read the pages. Each responded negatively. 

Upon completion of the questioning, the court asked the parties if they desired

any further inquiry. Neither side requested further investigation. The district

court subsequently excused the jury, denied the motion for a mistrial, and entered

judgment in accordance with the jury verdict. On February 10, 1998, the district

court sentenced Mr. Byrne to twenty-one months imprisonment followed by a
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three-year period of supervised release. This appeal followed.

I.

Defendant argues that the district court violated his Sixth Amendment right

to confrontation when it restricted defense counsel’s cross-examination of the

complaining witness. “We review de novo whether a defendant’s Sixth

Amendment confrontation rights were violated by cross-examination restrictions,

and whether any such violation was harmless.” United States v. Gault, 141 F.3d

1399, 1403 (10th Cir.), cert. denied, 119 S. Ct. 253 (1998); accord United States

v. Bindley, 157 F.3d 1235, 1240 (10th Cir.), cert. denied, 119 S. Ct. 1086 (1998). 

A defendant’s “right to cross-examine witnesses is an integral part of the right to

confrontation, [but] it is not an absolute or unlimited right.” Gault, 141 F.3d at

1403. The United States Supreme Court has recognized that “trial judges retain

wide latitude insofar as the Confrontation Clause is concerned to impose

reasonable limits on . . . cross-examination based on concerns about . . .

harassment, prejudice, confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally relevant.” Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986); see also Bindley, 157 F.3d at 1240; Gualt, 141

F.3d at 1403.

The record reflects that the district court refused to allow questioning only

regarding an unrelated encounter the witness had with another man and the
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witness’ corresponding arrest on runaway charges. The district court found such

testimony substantially more prejudicial than probative. We agree. We therefore

conclude that the cross-examination restrictions imposed by the district court fell

within the bounds permitted by the Sixth Amendment.

II.

Defendant also argues that the district court erred by failing to grant his

motion for judgment of acquittal because the prosecution did not produce any

evidence of proper venue. “We review the denial of a motion for judgment of

acquittal de novo, viewing the evidence in the light most favorable to the

government to determine if the jury could have found defendant guilty of the

essential elements of the crime beyond a reasonable doubt.” United States v.

Ailsworth, 138 F.3d 843, 846 (10th Cir.), cert. denied, 119 S. Ct. 221 (1998);

accord United States v. Smith, 156 F.3d 1046, 1055 (10th Cir. 1998), cert. denied,

119 S. Ct. 844 (1999). However, when the motion raises a question of venue, we

alter the analysis somewhat, for unlike other substantive elements of the offense

charged, the government need only prove venue by a preponderance of the

evidence. See United States v. Carter, 130 F.3d 1432, 1438 (10th Cir. 1997), cert.

denied, 118 S. Ct. 1856 (1998); United States v. Miller, 111 F.3d 747, 749 (10th

Cir. 1997). Contrary to defendant’s assertion, the record is replete with evidence

that establishes proper venue in the District of New Mexico. The evidence
2

 Defendant apparently argues that he had to use the telecommunications

device within New Mexico to establish proper venue in the District of New

Mexico. Defendant is mistaken. Coercion and enticement in violation of 18

U.S.C. § 2422 is a continuing offense under 18 U.S.C. § 3237 and venue is proper

in “any district in which such offense was begun, continued, or completed.” 18

U.S.C. § 3237(a). Because the communications in this case must have reached

New Mexico for the minor to have been enticed, venue is proper in New Mexico. 

Cf., e.g., United States v. Naranjo, 14 F.3d 145, 147 (2d Cir. 1994) (noting that

“phone calls from one jurisdiction into another can establish venue so long as

they further the ends of the conspiracy.”); United States v. Lewis, 676 F.2d 508,

511 (11th Cir. 1982) (finding that telephone call from Florida to Texas was

sufficient to establish venue in the Western District of Texas when the telephone

call was in furtherance of the offense).

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indicates that defendant used telecommunications devices in interstate commerce

to communicate with a minor in New Mexico2

 and that defendant traveled to New

Mexico, where he engaged in sexual acts with the minor. Thus, the government

provided ample evidence from which the jury could have found proper venue. 

Therefore, the district court did not err in denying defendant’s motion for

acquittal.

Moreover, to the extent that the defendant suggests that the jury was not

adequately instructed on venue and thus made no explicit venue finding, we find

this argument without merit. Although venue is a question of fact that ordinarily

must be decided by the jury, see Miller, 111 F.3d at 749, failure to instruct the

jury on venue does not necessarily constitute reversible error. In Miller, we

stated that “failure to instruct on venue, when requested, is reversible error unless

it is beyond a reasonable doubt that the jury’s guilty verdict on the charged
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offense necessarily incorporates a finding of proper venue.” 111 F.3d at 751

(emphasis added). In this case, however, defendant fails to assert or direct our

attention to any request for a specific instruction on venue. Consequently, Miller

is inapposite. Because defendant also did not object to the lack of a specific

venue instruction at trial, we review this claim only for plain error. See Fed. R.

Crim. P. 52(b); United States v. Meuli, 8 F.3d 1481, 1487 (10th Cir. 1993).

As noted above, the record reveals that defendant used telecommunications

devices in interstate commerce to entice a minor in New Mexico to engage in

sexual acts and that he traveled to New Mexico to perform sexual acts with the

minor. These acts established venue in the District of New Mexico and

comprised the sole basis for defendant’s guilt. The defendant also did not

genuinely challenge the location of these acts. We hold that under these

circumstances the jury’s guilty verdict necessarily incorporated a finding of

proper venue. Consequently, the district court’s failure to fashion a specific

instruction on venue in this case does not constitute plain error. Cf. Miller, 111

F.3d at 751 (asserting that even when a specific jury instruction concerning venue

is requested “[w]here the entirety of the defendant’s illegal activity is alleged to

have taken place within the trial jurisdiction, and no trial evidence is proffered

that the illegal act was committed in some other place or that the place alleged is

not within the jurisdiction, any defect in failing to specifically instruct on venue
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would be cured by the guilty verdict”). 

III.

Finally, defendant claims that the district court committed reversible error

when it denied his motion for a mistrial predicated on the submission of

extraneous material to the jury. We review the district court’s decision to deny a

motion for a new trial under the abuse of discretion standard. See Anaeme v.

Diagnostek, Inc., 164 F.3d 1275, 1284 (10th Cir. 1999); see also United States v.

Robinson, 39 F.3d 1115, 1116 (10th Cir. 1994). “We will therefore overturn that

decision only if that court has abused its discretion by rendering a judgment that

is ‘arbitrary, capricious, whimsical, or manifestly unreasonable.’” Robinson, 39

F.3d at 1116 (quoting United States v. Wright, 826 F.2d 938, 943 (10th Cir.

1987)). “In determining whether the jury’s exposure to [extraneous material]

during deliberation warranted a new trial, the proper inquiry for the district court

was whether there was the ‘slightest possibility’ that it affected the verdict.” 

United States v. Wood, 958 F.2d 963, 966 (10th Cir. 1992); see also Johnston v.

Makowski, 823 F.2d 387, 389-91 (10th Cir. 1987). 

Here, the district court conducted an investigation regarding the extraneous

material, including questioning the jury under oath. This investigation revealed

that a juror discovered several computer printouts containing profiles of minors

who wished to engage in a homosexual relationship inside an atlas admitted into
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evidence. After discovering the material, the juror promptly sent it out of the jury

room without reading it. Each juror testified that he or she did not read the

extraneous material.

Unlike a photograph, tape, object, or enactment, a juror must have read the 

printed information to comprehend its prejudicial content. We hold that when

extraneous printed material is sent out of the jury room promptly upon its

discovery and each juror has sworn under oath that he or she did not read the

material, there is not even the slightly possibility that the material affected the

verdict. Thus, we find no abuse of discretion in the district court’s decision to

deny defendant’s motion for a new trial.

We further note that, contrary to defendant’s assertion, this case is easily

distinguishable from United States v. Wood, 958 F.2d 963 (10th Cir. 1992). In

Wood, the prosecution utilized a timeline during its closing arguments. The jury,

during its deliberation, requested a copy of the timeline, which the court refused

to provide. See id. at 966. However, a notepad containing key information

regarding the prosecution’s timeline was impermissibly present in the jury room

during its deliberation. See id. Upon discovery, the notepad was open to the

page on which the timeline information was written. See id. The district court

questioned only the jury foreman who testified that the jury did not look at the

notes but admitted that he was not in the room during the entire deliberation. See
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id. Based on this testimony, the court concluded that the foreman’s testimony was

inconclusive and that there remained a slight possibility that the extraneous

information could have affected the verdict. See id.

In contrast, the jury in this case did not request information similar to the

extraneous material and promptly sent the material out of the jury room without

reading it. Under these circumstances, no juror would have had the opportunity to

consider the information contained in the computer printouts. In essence,

defendant asks us to conclude that the jurors lied under oath when they stated that

they had not read the extraneous materials. We will not indulge this request, for

in making our determination regarding whether the district court abused its

discretion in denying a motion for a mistrial, “we give due deference to the

district court’s evaluation of the salience and credibility of testimony, affidavits,

and other evidence.” United States v. Robinson, 39 F.3d 1115, 1116 (10th Cir.

1994). The district court had the chance to evaluate the credibility of the jurors

and chose to accept the jurors’ statements as being true and conclusive.

Conclusion

For the reasons discussed above, we AFFIRM the defendant’s convictions.